Geiger Gibson Capstone in Community Health Policy & Leadership. Webinar Series – Fall 2013 (3-4 pm) Executive Branch 10/1-Merle Cunningham Legislative Branch 10/8-Dan Hawkins Judicial Branch-10/15-Sara Rosenbaum Advocacy Role-10/22-Amanda Pears Kelly
Geiger Gibson Capstone in Community Health Policy & Leadership
Webinar Series – Fall 2013 (3-4 pm)
Executive Branch 10/1-Merle Cunningham
Legislative Branch 10/8-Dan Hawkins
Judicial Branch-10/15-Sara Rosenbaum
Advocacy Role-10/22-Amanda Pears Kelly
Merle Cunningham MD MPH - Program Director
The Judicial Role in Health Policy
Sara Rosenbaum, J.D.
Harold and Jane Hirsh Professor of
Health Law and Policy
September 15, 2013
Codifies social relationships among individuals, the marketplace, the government, health professionals, and others.
Creates enforceable rights and duties.
Judiciary defines and enforces legal relationships and can reorder society with major political, economic, cultural, and social consequences
Judicial policy can be overturned only by higher courts or, if based on statute or common law, by legislature.
Consequently, courts use power sparingly (but not always, e.g., Bush v Gore)
Parallel federal and state systems
The federal courts have great constitutional powers but also great constraints, both external and self-imposed:
Limits on judicial powers to hear a dispute (subject matter jurisdiction)
Standing: is there a concrete injury that lends itself to a judicial resolution?
Limits on right of private actors to seek judicial redress (the right of action)
Limits on what courts can do (remedial powers)
Congress controls power of lower courts
Legal disputes driven by “theory of the case,” which frames facts in order to move toward legal outcomes.
e.g. ACA minimum coverage requirement is normal exercise of Congressional powers under the Constitution vs ACA is unprecedented effort to control individuals by forcing them into the market for health insurance
Individuals and government – minimum coverage requirement
Individuals and markets – Consumer safeguards (e.g., emergency treatment coverage, appeals, essential health benefit requirements)
Markets and government – Insurance reforms, Qualified Health Plans and Exchanges, government powers to regulate market entry, such as pharmaceuticals and biologics
Providers versus markets – provider non-discrimination provisions of insurance reforms; special “essential community provider” contracting rules for Qualified Health Plans (QHPs) sold in the Exchange
Providers versus government – Provider accountability for quality under Medicare payment reforms
Providers and patients – not directly touched, indirectly through insurance reforms
Next Week’s Topic
Advocacy Role in Health Policy
Amanda Pears Kelly, NACHC
National Advocacy Director